Alvin S. v. Dcs, S.M. ( 2016 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
ALVIN S., Appellant,
v.
DEPARTMENT OF CHILD SAFETY,1 S.M., Appellees.
No. 1 CA-JV 15-0304
FILED 4-21-2016
Appeal from the Superior Court in Maricopa County
No. JD511101
The Honorable Timothy J. Ryan, Judge
AFFIRMED
COUNSEL
David W. Bell, Attorney at Law, Mesa
By David W. Bell
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Dawn R. Williams
Counsel for Appellee Department of Child Safety
1 Pursuant to S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz.
2014) (enacted), the Department of Child Safety (DCS) is substituted for the
Arizona Department of Economic Security (ADES) in this matter. See
ARCAP 27. For consistency, we refer to DCS in this decision even where, at
the time, actions were taken by ADES.
ALVIN S. v. DCS, S.M.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jon W. Thompson delivered the decision of the Court, in
which Judge Maurice Portley and Judge Patricia K. Norris, joined.
T H O M P S O N, Judge:
¶1 Alvin S. (father) appeals from the juvenile court’s order
terminating his parental rights as to S.M. (daughter). For the following
reasons, we affirm.
FACTS2 AND PROCEDURAL HISTORY
¶2 Alyssa M. (mother) and father are the biological parents of
daughter, born in February 2011.3 In June 2013, DCS took daughter into
temporary custody after mother’s one month old son (P.M.) was admitted
to the hospital in respiratory distress.4 Hospital staff reported that father
and mother were distant and unresponsive to the needs of daughter and
P.M., and they did not have money or insurance to provide for P.M.’s
medical care. DCS also reported that after P.M.’s release from the hospital,
mother and father failed to follow through with P.M.’s necessary medical
services.
¶3 DCS filed a dependency petition alleging that father and
mother neglected daughter by failing to provide stable housing and
appropriate parental care and supervision; they neglected to provide
2 We review the evidence and draw all reasonable inferences in
the light most favorable to upholding the juvenile court’s factual findings.
Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 13, 53 P.3d 203, 207
(App. 2002).
3 Mother’s parental rights to daughter was terminated on August 31,
2015, and are not subject to this appeal.
4 A doctor diagnosed P.M. with failure to thrive, multiple congenital
anomalies, “CHARGE syndrome,” and numerous other significant medical
conditions. Father is not the biological parent of P.M., and P.M. is not a
party to this appeal.
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ALVIN S. v. DCS, S.M.
Decision of the Court
appropriate medical care,5 and father failed to protect daughter from
mother’s neglect and substance abuse. The juvenile court found daughter
dependent as to both parents and placed her into foster care. DCS
established a case plan for father of reunification and offered him the
following services: parent aide, supervised visitation, rule-out substance
abuse testing, psychological evaluation, transportation, bonding
assessment, parenting classes, and individual and couples counseling.
¶4 In January 2014, father completed his initial assessment at
Ameripsych and began participating in the parent aide service. Six months
later, parent aide closed out unsuccessfully after father failed to actively
participate and was unable to retain the information provided to him. DCS
continued to offer visitation only, which consisted of two visits per week
for two hours. Father attended nearly all of the visits and demonstrated a
bond with the daughter. However, father inconsistently participated in
couples counseling, and failed to complete parenting classes. Although
DCS provided notification to father of daughter’s medical, dental, and
speech therapy appointments and offered to arrange transportation, father
failed to attend numerous appointments.
¶5 Dr. Richard Rosengard, a licensed psychiatrist, preformed an
evaluation of father in March 2015. Dr. Rosengard diagnosed father with
traits of posttraumatic stress disorder and antisocial personality disorder,
which involved a “lack of caring for those he is responsible for in terms of
assisting in caring for his children.” Dr. Rosengard expressed concern that
father’s disorder placed daughter at risk of neglect in caring for her medical,
emotional, financial and residential needs. Dr. Rosengard opined that
father would be unlikely to adequately parent daughter in the foreseeable
future, noting that father “does not appear to recognize the difficulties that
he has had in caring for [daughter].”
¶6 DCS filed a motion for termination of father’s parental rights
on the grounds of fifteen months’ time in care. See Ariz. Rev. Stat. (A.R.S.)
§ 8–533(B)(8)(c) (Supp. 2015). DCS also argued that termination would be
in daughter's best interests. See A.R.S. § 8–533(B). After a contested
severance hearing, the juvenile court found that DCS had established the
ground for severance, and that termination was in the best interest of
daughter. Accordingly, the juvenile court terminated father’s parental
rights to child.
5 Daughter was also diagnosed with developmental delays, including
cognitive delays, gross motor delay, and speech delay.
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ALVIN S. v. DCS, S.M.
Decision of the Court
¶7 Father timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 8-235(A) (2014), and 12-2101(A)(1) (Supp. 2015).
DISCUSSION
¶8 The juvenile court may terminate the parent-child
relationship only upon finding that clear and convincing evidence
demonstrates at least one statutory ground for severance; the court must
also determine that severance is in the child's best interests. A.R.S. § 8–
533(B); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018
(2005). On appeal, “we will accept the juvenile court's findings of fact
unless no reasonable evidence supports those findings, and we will affirm
a [termination] order unless it is clearly erroneous.” Jesus M. v. Ariz. Dep’t
of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002).
¶9 Pursuant to A.R.S. § 8-533(B)(8)(c), the juvenile court can
properly sever a parent’s rights if (1) the child has been in out-of-home
placement for fifteen months or longer; (2) the parent has been unable to
remedy the circumstances causing the child to be in out-of-home
placement; and (3) a substantial likelihood existed that the parent would
not be able to properly care for the child in the near future. We consider
“those circumstances existing at the time of the severance that prevent a
parent from being able to appropriately provide for his or her children.”
Marina P. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 326, 330, ¶ 22, 152 P.3d 1209,
1213 (App. 2007) (internal quotes and citation omitted). To avoid severance,
the parent must make more than trivial or de minimus efforts at
remediation. Maricopa County Juv. Action No. JS-501568, 177 Ariz. 571, 576
n.1, 869 P.2d 1224, 1229 n.1 (App. 1994).
¶10 Father does not challenge the juvenile court’s finding that
daughter has been in out-of-home placement for longer than fifteen
months. Rather, father argues that the juvenile court improperly found that
he was unable to remedy the circumstances causing daughter’s out-of-
home placement and that he will not be able to properly care for her in the
near future. Father also asserts that his failure to attend all of daughter’s
medical, dental, and speech therapy appointments did not warrant
termination of his parental rights. We disagree.
¶11 Reasonable evidence supported the juvenile court’s finding
that DCS had proven the fifteen months’ time in care ground. Throughout
the dependency, father inconsistently participated in services: he failed to
complete parent aide services; he missed numerous counseling sessions;
and he did not complete parenting classes. At the severance hearing, father
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ALVIN S. v. DCS, S.M.
Decision of the Court
admitted that he was unable to identify daughter’s medical conditions and
the services she received, and he did not have a current stable residence.
The DCS caseworker testified that father missed several dental
appointments for daughter, and his failure to confirm supervised visitation
times precluded daughter from receiving speech therapy by Easter Seals.
The caseworker further testified that daughter would continue to have
ongoing medical needs and services, yet father had not made the necessary
behavioral changes required.
¶12 Additionally, Dr. Rosengard testified that father was unable
to adequately parent daughter because of “a lack of willingness or ability
to take care of ones own personal responsibilities and take care of
responsibilities that one would have in terms of caring for others, that one
would ordinarily be responsible for somebody under their charge, such as
a child.” Dr. Rosengard opined that father was unlikely to be able to
provide for daughter’s medical, emotional, financial, and residential needs,
and father’s inability to parent daughter would likely continue in the near
future.
¶13 The juvenile court found that father has “been unable to
remedy the circumstances that led to the minor child, [daughter] being
placed in out-of-home placement,” and “further efforts by DCS to provide
services geared toward reunification would be futile.”6 Although father
presented evidence that he made some effort to remedy the circumstances
through counseling and that he was often loving and attentive during the
supervised visitations, the juvenile court had to resolve any conflicts in the
evidence, and we decline to re-weigh the evidence. See Jesus M., 203 Ariz.
at 282, ¶ 12, 53 P.3d at 207. Sufficient evidence supported the juvenile
court's finding that father would not be able to effectively parent daughter
in the near future. Consequently, the juvenile court did not err in finding
6 We reject father’s assertion that the only way to definitively
determine whether additional reunifications services would be futile was
to continue to provide father services and allow him to care for daughter
under DCS’s supervision. DCS is not required to provide a parent with
every conceivable service; the record supports the juvenile court’s finding
that “DCS has made diligent efforts to provide services to Father toward
family reunification throughout the duration of this case.” See Mary Ellen
C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192, ¶¶ 34, 37, 971 P.2d 1046,
1053 (App. 1999).
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ALVIN S. v. DCS, S.M.
Decision of the Court
that the statutory ground for termination had been met by clear and
convincing evidence.7
CONCLUSION
¶14 Based upon the foregoing, we affirm the juvenile court’s
termination order.
:ama
7 Father also contends that the juvenile court erred in making best
interest findings. However, father did not list this argument in the “Issues
on Appeal”; he cites no legal authority for how or why the juvenile court
erred; and he fails to cite to the parts of the record relied on. See ARCAP
13(a)(6), (7) (brief shall contain arguments “with citations of legal
authorities and appropriate references to the portions of the record on
which the appellant relies”); Polanco v. Indus. Comm'n, 214 Ariz. 489, 491 n.2,
¶ 6, 154 P.3d 391, 393 n.2 (App. 2007) (holding that an issue was waived on
appeal because the party mentioned it in passing, cited no supporting legal
authority, and failed to develop it further). Accordingly, father waived this
argument on appeal. Furthermore, even if we assume that father made a
proper challenge to the juvenile court’s best interest finding, we find no
error.
6